This article is misleading. There has not been 200 years of recess appointments within a session. Declaring that a chamber is in recess within a session is a relatively recent development. It isn't like people are just figuring this out after 2 centuries of federal democracy.

The concept of "intrasession" recess appointments is, rather, a 20th century innovation. However, it stems from a corruption of the meaning of the term "session", but not of the term "recess."
As I've said elsewhere in these comments, the term "session" refers not to any defined period of time, but to the physical act of the Senators sitting together in their Senate chambers or, equivalently, within physical proximity of them, such that they may be easily and timely recalled to the Senate floor, in order to cast a vote, make a speech, hear a debate, etc.
The Senate is empowered to "adjourn" its business to another date certain which, unless agreed in common by both houses (vide, Art. 1.5.4 of the Constitution), must not be delayed by more than 3 days. But at that time, the Senate must resume "in session", ie., they must be sitting together again and ready to do business. Necessarily, this requires that there be an actual quorum, meaning 51 senators in attendance.
Whenever the Senate is not sitting together or, equivalently, situated at a short distance from their chambers, it cannot be said to be "in session", no matter the more modern corruption of this term as referring to some extended period of Senate activity. It is either operating under some routine "adjournment" pursuant to Art. 1.5.4 OR it is "away", having suspended its normal business, i.e., "in recess."
The DC Cir. Ct. expressed quite some hysteria in its written decision, imagining that, absent its present ruling, the President would have untrammeled power to make recess appointments whenever the Senate "broke for lunch" !! Claptrap.
The principle reason for the DC Cir. Crt taking this decision was to force the issue before the US Supreme Court and, so, to clarify whether its very narrow reading of the Constitution, here, would prevail or, in the alternative, whether the broader and more liberal interpretation which has reigned for the past 100 years and which was encapsulated in the decision of the 11th Circuit Court in Evans v. Stephens (11CA 2004) would prevail.
The Noel Canning decision will be overturned and Evans will be reaffirmed. The NLRB appointees will be deemed properly appointed, as will Mr Cordray. The good work that these agencies did until their respective leadership shall not be overturned and nullified. And Noel Canning, Inc., will have to write up its union agreement, as even the DC Cir. Crt. agreed, it should have done.

Ah , yes 3 repub appointed judges using the Bclinton definition of what 'is is'..It will not stand ..It is the same BS lies that clinton was telling to justify bad behavior...but he just used one sentence..they took 30 pages!

Sentelle, the presiding judge, overturned the Poindexter and Oliver North convictions on Iran Contra for reagan, appointed Kenneth Starr to the position that allowed him to be appointed the $30 million impeachment prosecutor for bClinton and was Jessie Helms buddy..Fine upstanding activist repub that he is!

Very interesting. In the decision, one of the judges dissented from the holding that recess appointments must first arise only within the period of the Senate recess. At least on this score, one of the judges had some sense.

The DC Cir. Crt took this unprecedented, novel and quite ridiculously punctilious decision in order to force the issue before the US Supreme Court. They want the SCOTUS to choose between their decision and the 11th CA's decision in Evans v. Stephens.

And we laughed at Clinton for arguing over the meaning of "is."
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Seems obvious that the Constitution intended to allow government to function by allowing the President to make appointments when a vacancy occured when the Senate was not in session, not in The recess.
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The appointments were to be limited until the end of their next Session.
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The Senate could always terminate such appointments by starting a new session.
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The new ruling, if upheld, changes this.
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Formerly the majority of the Senate alone could thwart recess apointments by ending a session. The new ruling grants more power to Senate minorities.
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The two issues which seem more unresolved to me are whether the filibuster rule is constitutional and whether or not to make a recess appointment the vacancy has to begin whilst Congress is in recess (or The recess as this court would have it.), not just extend into a time of recess.

And another Constitutional Koan,if the two houses of Congress were divided and the Senate did not want to adjourn but the House did (assume a House aligned with the President and the Senate against,) can the president then declare the two houses to be in adjournment?
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He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper...
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Or does this clause only pertain to times when he convenes both Houses such as to deliver the State of the Union speech?

Yes, the filibuster is constitutional. That's not even debated. "Each House may determine the rules of its proceedings." US Const. Art. 1 Sec. 5.
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Whatever "recess" means, it does not mean adjourning for lunch. Even if we don't know what "recess" or "adjournment" means, it's clear that the President can force an adjournment but not necessarily a recess.
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I think whether vacancies have to occur during the recess, and not beforehand and continue into the recess, is actually more ambiguous. A strict construction would favor the former. But I could also argue that a "vacancy" isn't a point in time but a continuous state so that it "happens" during a recess even if it began in session.

Amazing, yes, that the DC Cir. Ct, in its decision, undertook to finely parse the meaning of "the".

Talk about missing the forest for the trees!

The clear purpose of the Recess Appointments Power is to provide the Executive the means of circumventing the Senate, when the Senate refuses to act to fill any open office but, instead, votes to get up and go home.

The problem in the Court's interpretation is its failure to properly understand the meaning of the term "session". Session refers to the seating of the members of the Senate (or, resp, the House) within their chambers, in order that they be there in close physical proximity and for the purpose of carrying on the Senate's official work, namely, proposing legislation, debating its merits, voting to amend, to enact or to defeat the enactment of any measure, to conduct hearings and investigations and, esepcially in this case, to render its "advice and consent" on any Art. III appointment.

While the term "session" encompasses the physical proximity of the Senators to their chambers without actually being seated there, e.g, whilst conducting further meetings nearby, taking lunch, answering the call of nature, etc., "session" cannot refer to the Senators being absent from the Capitol. Art. 1.5.4 expressly prohibits the Senate from adjourning to any other place than the Capitol.

So, when the Senators are not "in session" or, equivalently, where they have not agreed to adjourn their business in routine fashion and for less than 3 days, but where they have rather agreed to end their business and go their separate ways from the Capitol for some period of time in excess of three days, then, they are "in recess".

What should make it so very hard for the DC Cir. Ct. to come to this self-same and very simple interpretation of the Recess Appointments Clause, I'll never know.

Their decision will be quickly and timely overturned. Egg on their faces, all of them !!

See my other comments. "Recess" is an old parliamentary term developed in the 17th century and refers to the withdrawal of the members into their "private chambers", meaning, their withdrawal into their homes on hiatus from any further official business. In short, it refers to a period of time when the Senate is officially no longer doing business. It does NOT refer specifically and only to the year-end holiday recess, but to every such period of official congressional hiatus lasting longer than 3 days.

The DC Cir. Ct erred in holding that the term "happen" excludes the meaning "exist perchance" or "befall". These meanings of the word have inhered in it for over 700 years. Under the principle of "expressio unius est exclusio alterius", the Framers could have written, "which may happen FIRST during the Recess", but they didn't. Thus, we must conclude that they intended, here, to encompass ANY official vacancy which persisted, then, during the Recess, no matter when it first arose.

Art. 1.5.4 sets the lower bar for any recess as lasting at least 4 days. The Senate may simply adjourn its business for as much as 3 days without more. Beyond three days, an adjournment requires the consent of the House and must commence only upon a joint resolution. This makes the adjournment much more formal and, thereby, this would constitute an official hiatus, i.e., a "recess".

The term "adjournment" merely refers to the act of agreeing to fix a date certain in the future at which to reconvene the one or the other body. An adjournment, in and of itself, is not necessarily a "recess", but a "recess" is a particular species or effect of a prolonged adjournment.

"The issue may ultimately end up before the Supreme Court." Does the Supreme Court or a federal appeals court have jurisdiction to rule on this type of matter? I mean, I guess courts have in the past, so there's precedence, but it seems to me to violate the principle of co-equal powers. It's not ruling whether or not a piece of legislation is unconstitutional, but an action by the president and thus not judicial review, right? I guess I'm thinking about the Bush administration's refusal to allow Congress to subpena some administration officials, though I could be confusing issues...

No, they would be definition be out of power once a new session of the Senate commenced. A better question is, can any acts of the government during past presdidencies be invalidated because of improper past appointments?

I don't think so. I think the decision only applies to the case at hand and future appointments. For example, when the Supreme Court ruled in the late 19th Century that an income tax was unconstitutional, the federal government did not have to go back and repay all the revenues collected by the income tax levied during the Civil War. But this is really a question for a law professor.

While there is certainly logic to this opinion, I believe both Parties will end up ruing it -- assuming that it is upheld. We are trending to a point where the federal government will unable to function at all, although I don't think we'll get there; any trend that is unsustainable will eventually come to an end. But that end could be messy and chaotic.
This ruling also points out some of the unintended consequences of a written constitution and rigorously interpreting it as having to apply verbatim to the views and conditions that existed in 1789.

Ah, I had not thought of the "we are living in the world as it is shown in the movies" perspective. Probably comes of having been on the other side of the camera when some movies were made. But I can assure you that even the world shown in the movies isn't like the world beyond the camea there. Let alone the real world.

While I agree in part with your sentiments, I don't agree at all with their application in this case. The decision in Noel Canning v NLRB is a travesty of constitutional construction and cannot stand. The Court brazenly rejected the teaching of its sister court in Evans v. Stephens on these issues and arrogated to itself the determination of Presidential practice and intepretation, in violation of the Separation of Powers. While the Court is free to interpret the Constitution, it is not at all free to substitute its judgment for the President's when it comes time for the President to decipher whether the Senate is "in recess" or, in the alternative, "in session." The President must make such a determination and, indeed, the President's experience and opinion of this is weighty evidence that the Court must consider, rather than outrightly reject, as it expressly did.

More particularly, the Court expressed quite some hysteria in its decision that, absent that very court's intercession, the President would be free to make whatever recess appointment he wished whenever the Senate was on any break, whatsoever, even while taking lunch! Imagine!!

The DC Cir. Ct. has clearly overreached, here, and its ruling will not survive this year. The Framers enacted Art. 2.2.3 precisely to provide the President the means of filling up all official vacancies which continued to persist while the Senate, rather than act on his appointments, determined instead to head for the hills. They knew and rightly anticipated such shrewd parliamentarians as Mr. McConnell, who would abuse the power of their office to wilfully obstruct the proper functioning of the government. The Founding Fathers, while rightly skeptical of the unbridled power of appointment, were equally aware of the need to make the legislature quit squabbling and bring itself to the point of action. Art. 2.1 and 2.2 act to put a bridle on the Executive Horse. Art. 2.2.3 does the same for the Senate.

What's so amazing, here, is how the DC Cir. Ct. could have missed these simple, plain English interpretations of the Recess Appointment Clause.

Maybe someone should suggest that Obama go back to school and take some refresher courses on constitutional law. Obama has had a bunch of rulings by lower courts and supreme courts (many 9-0) saying that what he has done is unconstitutional. Maybe he too constitutional law in order to try to circumvent it. I think the courts are getting pissed at his power grabs, and now they made him pay by reinterpreting what a session is to prevent him from doing this kind of thing in the future.

Say what you will about Obama, but he has broken more constitutional rules than any president I remember. And when the Republicans take power again someday, the Dems are going to regret the day they let Obama do what he is doing today.

Not a single person who wants the Obama appointments thinks it's unconstitutional and not a single person who doesn't want the appointments thinks it's constitutional. Amazing how it works out that way, isn't it? People should pick a political philosophy before they pick a party.
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I believe the president should be allowed to appoint anyone he chooses within the executive branch. If Congress doesn't like it, they can remove the appointee or the president. For the record, I thought Elizabeth Warren should've been appointed consumer czar, as much as I despise her.
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"Recess" in the Constitution isn't defined. I doubt anyone at the time thought recesses would be scheduled for partisan purposes. They probably though Congress would schedule recesses so reps can take their four day journey back home to see their families. And the same time, they probably thought recess appointments would be used as an emergency power to keep the government running in the meantime, not to circumvent Congress. Today, there's little need for extended recesses. Unfortunately, airplanes and telecommunications don't amend the Constitution and there's no chance of amending it properly. So the choice is between allowing Congress to block nominees as was probably intended or using technicalities to frustrate the purpose of the Constitution.

And if I wasn't clear, I think Congress should stop blocking appointments but I think Obama's recess appointments at least violate the spirit of the Recess Appointment Clause, if not the letter of the law.

I think what is making it so partisan is that both sides see the other as desiring an unconstitutional option. Recess appointments are being taken to an extreme, but it's pretty clear that they are meant to allow normal government operations to continue. In this case, it appears to most on the left that Congress is trying to block the normal functioning of government, they're not opposed to the specific appointee, they're trying to prevent the NLRB from being staffed at all. This is pretty clearly an extra-constitutional power as well. By deciding as it did the Court probably rightly blocked an extra-constitutional use of power by the President, but in doing so it implicitly endorsed an extra-constitutional use of power by Congress. Both sides are pretty clearly abusing power here, so it splits on partisan lines.

We'd probably see a much larger middle ground if both sides weren't in the wrong. If Obama had pushed through Elizabeth Warren, for instance, as a recess appointment and the case were about that we'd probably still see the loudest voices on both sides squawking but there would be a larger middle conceding that this was loosely similar to Bush and Bolton, perhaps Congress should be able to block individuals they really, really don't like.

But there's no good argument that Congress was supposed to be able to stop a part of government from functioning by blocking appointments, it's supposed to do this through due process of law. There's a strong argument that no plausible nominees would have been approved for this post and it is the President's responsible to insure that the executive branch continues to function according to established law forcing a position where each side is technically exercising extra-constitutional powers. So the President's Constitutional responsibilities ended up in conflict with how the government as a whole is designed to function.

Ideally, we'd have another out, like converting positions to civil service positions if they remain unfilled (though since a permanent civil service with separate hierarchy didn't exist at the time of the Constitution this would be extra-constitutional as well). But in this particular case the decision seemed to come down to deciding which abuse of power to endorse, rather than a narrow question of recess appointments which might have split partisan affiliations.

I agree, they botched this one. I think that the failure was one to expicitly state that each Senator has one vote and that a majority afirms a bill and that no process or senate rule may interfere with the voting process.
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They also failed to specify exactly when the office has to empty in order to qualify for a recess appointment.
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If they had gotten the first issue correct, the second would be a lot less important to solve because a Senate which disagreed with a Recess appointment need only end its current Session and start a new one.
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They might regret having to terminate all of the recess appointments made in order to get rid of the one which they opposed but I guess the President could always reapppoint them with the assent of the Senate.
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I find it hard to believe that the intention of the founders was to make a super majority the prerequisit to a functioning Senate. We see in practice that this leads to total stagnation in the face of a determined minority.
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The Republicans could achieve the braking effect of divided government any way by opposing legislation in the House. They would lose the ability to completely gum up the working of the Executive branch by blocking appointments.
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It seems to me that if you don't like the views of say, a defense secretary the soution is to win the presidency, not try and make the president choose someone who disagrees with his views on defense.

The Framers, or at least a good portion of them at the time the constitution was written, hoped the country could be governed without political parties. As George Washington said in his Farewell Address, "The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism."

Well, for a couple of centuries the Senate generally let the President have the appointees he wanted to run the government. They occasionally rejected an individual who was objectionable on more than mere ideological or partisan grounds. But generally, the Senate acted like they thought that the elected executive should be able to do his job with the staff he wanted.
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Unfortunately, the current Senate (or at least enough of it) has a different view of things.

I disagree with your oringal assertion RR that no one who favors the appointments thinks it's unconstitutional. I favor the apointments but can countenance the possibility that they might be ruled to be unconstitutional. In fact, as things stand they are unconstitutional. I just hope that is a temporary state of affairs.

@Restrained. As I've said elsewhere in these comments, I firmly believe that Mr. Obama was well within his rights to make the 3 NLRB appointments and to appoint Mr. Cordray, when he did, on Jan. 4, 2012. The Senate was not then "in session", but was actually "in recess", having returned home to enjoy the rest of its formal and official hiatus until Jan. 23. The vacancies filled by the President's action were, then, all of them, unfilled, notwithstanding the fact that the President had already proferred new candidates at earlier times. The Senate had simply refused to act in timely manner and did so openly and defiantly to thwart the President and the proper functioning of the federal government. The Constitution does not require the President to wait forever, no more so than any law may properly require futile acts. Moreover, the Framers most certainly did not empower the Congress to act, by its ommission, so as to thwart the will of the People and to destroy the very government and its constitution that they are bound by oath to uphold. Rather, the Framers crafted Art. 2.2.3 precisely to act as a check on the Senate's power to intervene and obstruct the Executive. In other words, they intended, here, to reserve the power of appointment significantly to the Senate, but not all too much!

The goal of the constitution is to prevent tyranny. As the economist so trashes the 2nd amendment as being unnecessary as there are sections in the constitution that prevent tyranny, this is one of those sections. Now you propose watering this one down as well. I scratch my head but I don't understand this desire to have all powerful government/presidency. Absolutely scary from this mindset.

The Senate was in pro forma session as WW's post indicates. The White House argues that pro forma session's don't count. But that's clearly an unconstitutional interpretation. The 20th Amendment requires that Congress convene on January 3. In 2012, Congress did so pro forma. So a pro forma convening satisfies the Constitution but a pro forma recess doesn't?
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Your interpretation of 2(2)(3) is very odd. Yes, the Senate thwarted the President. The Constitution allows for lots of thwarting. Surely Congress can prevent funding of enforcement even if required by law. The President can't then use his constitutionally-granted executive power to force whatever funding he likes. To think that 2(2)(3) implicitly allows the president to thwart Congress requires too much mind reading of the Framers. I think it's much more likely that the Framers had no such power to circumvent Congress in mind. If they did, they wouldn't made such a power explicit, not hidden it behind the Recess Appointments Clause.

On the contrary, the Constitution does NOT permit either house of Congress to enter into "pro-forma" session, meaning, a session in form only but not in substance. Clearly, according to Art. 1.5 of the Constitution, Congress must convene in session, meaning SITTING TOGETHER IN CHAMBERS, at least once per year beginning on Jan. 3. It may thereafter adjourn its further business to another day and may do so without notice to the other house, if for only three days or less, but must first obtain the consent of the other house, if for four days or more. All of this is very clear. In addition, Congress may NOT adjourn to any other place than to its own chambers.

Where either house of Congress agrees to suspend its business for some period of time other than any routine adjournment, in particular, for longer than 3 days, it can rightly be said that that house is "in recess", meaning clearly, that is has suspended its business and that the members are thereafter free to "withdraw", to "retire" and to "recede" from the Capitol to their private homes. Typically, going into "recess" implies that Congress cannot immediately be summoned back to the Capitol on short notice, but that there would be difficulty in arranging a sufficient quorum for conducting its affairs.

Note, too, that Art. 1.5 requires a QUORUM of at least 51 Senators, before the Senate may properly be held to be "in session" and, thereafter, to CONTINUE "in session". Where that quorum is lost and cannot be immediately restored by simply paging the Senators into chambers, but where the Senators have absconded into their homes from the Capitol during an acknowledged official hiatus, then, the Senate can no longer rightfully be called "in session", but only "in recess."

Yes, the Senate agreed to a formal hiatus of its business extending from Dec. 20, 2011 to Jan. 23, 2012 (which the Court recites in its opinion), and punctuated that hiatus by returning MOMENTARILY on Jan. 3, as it must, and on certain other days. Still, however, while Congress was "in session" on Jan. 3, it ended its session that same day and adjourned to Jan. 23, during which time it was, again, and continued to be "on hiatus", that is, "in recess."

Mr. Obama made his appointments on Jan. 4 while the Senate was clearly "in recess" by every ordinary and reasoned construction of these words. That the DC Cir. Ct. held otherwise is what boggles the mind, here. They had no foundation for making this wholly arbitrary and capricious determination. It will be overturned.

Secondly, reading Evans v. Stephens, it is absolutely clear that the purpose of the Recess Appointments Clause is to permit the President to ensure the proper operation of the government by "filling up all vacancies". It is NOT an abuse of power for the President to fill official vacancies. Rather, it is his and solely his constitutional obligation. That is what the Framers intended, in order to reduce and eliminate the likelihood of official corruption, which would otherwise have obtained, if every minor government official could have instituted new posts and appointed new officials, as was the case, then, in England.

The Framers, however, wished to exercise a check on the President's appointment power, which gave rise to Art 2.1 and 2.2. But they also, clearly, wished to give the President an alternative avenue of ensuring the continued and proper operation of the government where the Senate was either UNABLE or UNWILLING to exercise its duty to review and approve (or, as the case may be, disapprove) of the President's appointments. Read Alexander Hamilton on this. That was the rational for a "check on the check", if you will, which is encompassed in Art. 2.2.3. Nothing strange or unusual about that.

Rather, is it the DC Cir. Ct.'s interpretation of Art. 2.2.3, which serves to eviscerate the President's Recess Appointments Power, which is surely strange and unusual. Again, it will be overturned.

No, Congress convened on Jan. 3 pro forma and adjourned to Jan 6. There was no quorum. A quorum is necessary to do business but the lack of a quorum doesn't mean the Senate is in recess. Obviously the President can't make recess appointment's during the Senate's lunch when there's no quorum.
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You state dogmatically that the Framers "clearly" wanted to give the President a way to circumvent Congress. You mention Alexander Hamilton who made no such statement. He only reiterates the non-controversial view that the President can appoint when the Senate CANNOT advise and consent because it is in recess. He says absolutely nothing about a power to appoint if the Senate can but is unwilling.

Except that their veto power over the ability of (Congressionally mandated parts of) the government to function is exercised not so much by the 1/6 that they control (i.e. the House), but by the fact that their minority in the Senate is large enough to block approval of appointments.

Sort of. The Senate plays a constitutional role in appointments. It does not have total control over appointments, but it does have some. America isn't strictly a democracy and, with its three branches of government and varying electoral systems, was not deliberately created to be strictly deomocratic, but something more nuanced. The scope of power for any branch is constrained.

If by "strictly democratic" you meant "directly democratic", then, no, the United States and its many individual States, counties and municipal governments are all, each and every of them, REPRESENTATIVE democracies. But so is Britain's and most every other "democratic" government in this world, today.

This is a great point you make...We are not a democracy we are a Republic. The framers intent was to prevent the masses from being a___s and ruling via the Mob. The French Revolution and the fall of the Bastille played prominent parts in the way that the Framers wrote the constitution.

I think that we can all agree that this is an imperfect system yet a good one. The problem is the the process has been circumvented by egos, money, lawyers and ideologies.

The lack of compromise that has existed in Washington for multiple Administrations and Congressional sessions has forced the use of Executive Orders, Recess Appointments and Filibusters to become the norm. Both houses of Congress are so partisan that they cannot even tolerate each other let alone legislate.

The Courts are believed to be partisan based on who appointed whom.....It seems that we as a voting population need to restore a Balance, however we have a media and extreme left and right that are more concerned about idealogical differences and dividing our society and ethnic groups than what is best for the country.

I believe between 60 - 70 % of the population in this country is Socially a little Liberal and Fiscally somewhat Conservative. We have the fringes on both sides dictating to the Majority in the middle.

If we do not put our idealogical differences aside as we will never all agree and focus on taking back our country there will be no country left in which to have these debates.

The President nominates someone, the Senate appoints them. Actually, it's a rather elegant solution to Arrow's impossibility theorem if you ask me, but its clearly the Senate by whose authority appointments are made.
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The ruling is an absolutely necessary restoration of the intended balance of powers, as far as I see it. Otherwise one of the main powers granted to the Senate specifically in the Constitution is meaningless, which is rediculous. If you wanted the democratic nominees appointed though, there's nothing in the Constitution mandating the filibuster. The democrats have a majority, so they can repeal it anytime they like and appoint the nominees. It's not the Senate Republicans that are in the way here.

By the way, if he was going to push some boundaries to get the administration's agenda through, Obama should have tried to get the Senate to allow the presiding officer to bring up a bill to the floor for a vote. Get around committee, around amendments, around the filibuster, and with that you could control the political debate in the country. Also, it makes a helluva lot of sense because of public choice math it gets around. It would be an incredible power, and I bet he coulda gotten the Senate to vote it in when he was first coming into office. Or he could just have Biden declare it within his power and its not like is justiciable.

@Out of Africa and in the USA
"The French Revolution and the fall of the Bastille played prominent parts in the way that the Framers wrote the constitution."
Considering the timeline of the US Constitution, that looks very unlikely.

"The Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in eleven states. It went into effect on March 4, 1789."
Since the US Constitution went into effect 4 months and 10 days BEFORE the storming of the Bastille, the Framers needed some tacyon communication to get a word about the consequence of the French Revolution...

You are partially correct...The constitution was adopted as you say 9/17/1787, however the Amendments(*Bill of Rights*)were ratified 12/15/1791***....The discussion here is about the amendments which are part of the constitution...the first 10 were absolutley influenced by events in France...

The French Reveolutionary movement actually started with the Aristocratic Revolt in FEBRUARY 1787 and LASTED TO 1799.....With its first climax in the Bastille in which kicked off Mob Rule and the Reign of Terror July 14 1789.

THE BILL OF RIGHTS WERE PROPOSED AND INTRODUCED BY JAMES MADISON ( THERE WERE 12, ONLY 10 WERE ADOPTED) August 21 1789 by Congress and WERE RATIFIDED DECEMBER 15 1791 AND CAME INTO EFFECT AS AMMENDMENTS TO THE CONSTITUTION - IT IS THESE FIRST 10 AMENDMENTS THAT WERE DRAMATICALLY INFLUENCED BY THE TURMOIL IN FRANCE THAT BEGAN IN FEBRUARY 1787.

WHEN TALKING ABOUT THE CONSTITUTION IT IS IMPORTANT TO RECOGNISES IT WAS AN EVOLVING DOCUMENT AT THAT TIME...

THE BEGINNING OF THE FRENCH REVOLUTION!
The FRENCH Revolution actually started with the The Revolution took shape in France when the controller general of finances, Charles-Alexandre de Calonne, arranged the summoning of an assembly of “notables” (prelates, great noblemen, and a few representatives of the bourgeoisie) in February 1787 to propose reforms designed to eliminate the budget deficit by increasing the taxation of the privileged classes. The assembly refused to take responsibility for the reforms and suggested the calling of the Estates-General, which represented the clergy, the nobility, and the Third Estate (the commoners) and which had not met since 1614. The efforts made by Calonne’s successors to enforce fiscal reforms in spite of resistance by the privileged classes led to the so-called revolt of the “aristocratic bodies,” notably that of the parlements (the most important courts of justice), whose powers were curtailed by the edict of May 1788. During the spring and summer of 1788, there was unrest among the populace in Paris, Grenoble, Dijon, Toulouse, Pau, and Rennes. The king, Louis XVI, had to yield; reappointing reform-minded Jacques Necker as the finance minister, he promised to convene the Estates-General on May 5, 1789. He also, in practice, granted freedom of the press, and France was flooded with pamphlets addressing the reconstruction of the state. The elections to the Estates-General, held between January and April 1789, coincided with further disturbances, as the harvest of 1788 had been a bad one. There were practically no exclusions from the voting; and the electors drew up cahiers de doléances, which listed their grievances and hopes. They elected 600 deputies for the Third Estate, 300 for the nobility, and 300 for the clergy.

The constitution was adopted as you say 9/17/1787, however the Amendments(*Bill of Rights*)were ratified 12/15/1791***....The discussion here is about the amendments which are part of the constitution...the first 10 were absolutley influenced by events in France...

The French Revolutionary movement actually started with the Aristocratic Revolt in FEBRUARY 1787 and LASTED TO 1799.....With its first climax in the Bastille in which kicked off Mob Rule and the Reign of Terror July 14 1789.

THE BILL OF RIGHTS WERE PROPOSED AND INTRODUCED BY JAMES MADISON ( THERE WERE 12, ONLY 10 WERE ADOPTED) August 21 1789 by Congress and WERE RATIFIDED DECEMBER 15 1791 AND CAME INTO EFFECT AS AMMENDMENTS TO THE CONSTITUTION - IT IS THESE FIRST 10 AMENDMENTS THAT WERE DRAMATICALLY INFLUENCED BY THE TURMOIL IN FRANCE THAT BEGAN IN FEBRUARY 1787.

WHEN TALKING ABOUT THE CONSTITUTION IT IS IMPORTANT TO RECOGNISES IT WAS AN EVOLVING DOCUMENT AT THAT TIME...

THE BEGINNING OF THE FRENCH REVOLUTION!
The FRENCH Revolution actually started with the The Revolution took shape in France when the controller general of finances, Charles-Alexandre de Calonne, arranged the summoning of an assembly of “notables” (prelates, great noblemen, and a few representatives of the bourgeoisie) in February 1787 to propose reforms designed to eliminate the budget deficit by increasing the taxation of the privileged classes. The assembly refused to take responsibility for the reforms and suggested the calling of the Estates-General, which represented the clergy, the nobility, and the Third Estate (the commoners) and which had not met since 1614. The efforts made by Calonne’s successors to enforce fiscal reforms in spite of resistance by the privileged classes led to the so-called revolt of the “aristocratic bodies,” notably that of the parlements (the most important courts of justice), whose powers were curtailed by the edict of May 1788. During the spring and summer of 1788, there was unrest among the populace in Paris, Grenoble, Dijon, Toulouse, Pau, and Rennes. The king, Louis XVI, had to yield; reappointing reform-minded Jacques Necker as the finance minister, he promised to convene the Estates-General on May 5, 1789. He also, in practice, granted freedom of the press, and France was flooded with pamphlets addressing the reconstruction of the state. The elections to the Estates-General, held between January and April 1789, coincided with further disturbances, as the harvest of 1788 had been a bad one. There were practically no exclusions from the voting; and the electors drew up cahiers de doléances, which listed their grievances and hopes. They elected 600 deputies for the Third Estate, 300 for the nobility, and 300 for the clergy

The constitution was adopted as you say 9/17/1787, however the Amendments(*Bill of Rights*)were ratified 12/15/1791***....The discussion here is about the amendments which are part of the constitution...the first 10 were absolutley influenced by events in France...

The French Revolutionary movement actually started with the Aristocratic Revolt in FEBRUARY 1787 and LASTED TO 1799.....With its first climax in the Bastille in which kicked off Mob Rule and the Reign of Terror July 14 1789.

THE BILL OF RIGHTS WERE PROPOSED AND INTRODUCED BY JAMES MADISON ( THERE WERE 12, ONLY 10 WERE ADOPTED) August 21 1789 by Congress and WERE RATIFIDED DECEMBER 15 1791 AND CAME INTO EFFECT AS AMMENDMENTS TO THE CONSTITUTION - IT IS THESE FIRST 10 AMENDMENTS THAT WERE DRAMATICALLY INFLUENCED BY THE TURMOIL IN FRANCE THAT BEGAN IN FEBRUARY 1787.

WHEN TALKING ABOUT THE CONSTITUTION IT IS IMPORTANT TO RECOGNISES IT WAS AN EVOLVING DOCUMENT AT THAT TIME...

THE BEGINNING OF THE FRENCH REVOLUTION!
The FRENCH Revolution actually started with the The Revolution took shape in France when the controller general of finances, Charles-Alexandre de Calonne, arranged the summoning of an assembly of “notables” (prelates, great noblemen, and a few representatives of the bourgeoisie) in February 1787 to propose reforms designed to eliminate the budget deficit by increasing the taxation of the privileged classes. The assembly refused to take responsibility for the reforms and suggested the calling of the Estates-General, which represented the clergy, the nobility, and the Third Estate (the commoners) and which had not met since 1614. The efforts made by Calonne’s successors to enforce fiscal reforms in spite of resistance by the privileged classes led to the so-called revolt of the “aristocratic bodies,” notably that of the parlements (the most important courts of justice), whose powers were curtailed by the edict of May 1788. During the spring and summer of 1788, there was unrest among the populace in Paris, Grenoble, Dijon, Toulouse, Pau, and Rennes. The king, Louis XVI, had to yield; reappointing reform-minded Jacques Necker as the finance minister, he promised to convene the Estates-General on May 5, 1789. He also, in practice, granted freedom of the press, and France was flooded with pamphlets addressing the reconstruction of the state. The elections to the Estates-General, held between January and April 1789, coincided with further disturbances, as the harvest of 1788 had been a bad one. There were practically no exclusions from the voting; and the electors drew up cahiers de doléances, which listed their grievances and hopes. They elected 600 deputies for the Third Estate, 300 for the nobility, and 300 for the clergy

What the court is doing is voiding the work arounds that have allowed the government to continue functioning even though the people in Congress are a bunch of scumbags.

"It would be more effective to allow recess appointments that the senate could later revoke."

Or allow temporary appointments to stay in place until Presidential nominees at least come up for a vote.

Look to the big picture. You have a generation in charge that doesn't care about their country, their community, their company, their children, and does not even have the discipline, for the most part, to put aside their current urges for the good of their own personal futures.

Except there is one problem with this approach...it isn't the way the constitution was written. Good luck changing it. Isn't it wonderful to have rules, but then claim you don't like them when it serves your purpose. Of course when the rules serve your purpose they must be obeyed.

REALLY. this isn't a rule...this is called a dictatorship. Are people on this blog really that stupid?

A rule is a rule is a rule. If you don't like the rule change it, but you can't then change it back to be the rule when it suits your purpose. My god, what hypocrits!

The problem is that neither one of these parties can compromise...I do not think that they even know the definition.

As a country we have become so fractured based on ideology. When it comes to this we will never all agree, however one thing is certain.....We better get our House in order. If the voters demand more accountability and if the have such a lack of confidence in the current crop of politicians, many of which have been there too long....Why is it that we keep returning these goons to office.

I have read with a lot of interest all of the posts and what I like here is that for the most part we are all different but seems that we have a better idea on how to debate, compromise and discuss matters than that bunch of goons in Washington..

Fillibusters by one Senator in which no one shows up and votes are not in the Constitution either.

If Americans only knew that most of their representatives never show up in their chambers to debate the issues, and then when their Congressman and Senator does speak there is no one else in the room, perhaps they'd rise up and throw the scumbags out.

I must have missed the definition of senate recess in the consitution. Is it there?

I do know that rewriting the rules of recess appointments in 2013 doesn't exactly seem like the kind of ruling that is constitution based, unless someone changed the constitution recently and I wasn't aware of it.

It is time to dissolve this disfunctional US government and replace it with people outside the ruling class. How many people can put off doing their job without consequences? We the People are suffering incompetent governance because these elected clowns refuse to do the work they were hire to do. Enough of the games, fire them all and hold new elections in March.

Sooooo, the Judges have essentially said it's ok to just not run the country. Nobody minds if there's no one at the wheel... we didn't elect people who legislated those positions into being for a purpose at all...

As a taxpayer I feel cheated by this. It would be more effective to allow recess appointments that the senate could later revoke. But if you make it to where the president can appoint whoever he wants without regard to the senate as long as they leave during a recess, then that will become the new norm.

You are confusing filibuster reform with constitutional integrity. Obama cannot have the ability to unilaterally decide when the chamber is in recess because then he could completely disregard the confirmation process.

Harry Reid could have reformed the filibuster but made a conscious decision not to.

Andit's not like anything terrible is going to happen if there's a vacancy at the NLRB and nobody behind the wheel. The country might be better off without that agency anyway,

I agree that the president cannot be allowed to declare a recess whenever he wants. But I also think the current system of obstructing the government as the people have voted in the majority for is far more unconstitutional then making some recess appointments.
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I would provide for a system, and this is just spit balling numbers, where if an appointment has been tried multiple times and the senate has turned them all down then the president can make a recess appointment. That would stand for 1 year until the end of that recess and if the Senate wished, they could then challenge the appointment and literally vote the guy out. This kind of system I believe would force the executive and legislative branch to work together as our founders intended.
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That at least gives us oversight, and the ability to govern in the face of obstructionism. If the american people thought the NLRB didn't need an appointment or didn't need to be in existence, there would be the will in congress to pass a law repealing it's "charter". We don't just get to take the toys away because they don't fit our personal ideology, anyone wanting to just impose their ideology on a country is more than welcome to go take over a small third world country and run it as they see fit. This is america where the will of the people rule, not the will of the whining minority.

Why do you need a system? All you need to do is reform the filibuster like the deal that the gang of senators did at the end of Bush's term. Recess appointments are antiquated since they date back to before modern travel.

What you call obstructionism goes both ways. If you are obstructing something terrible, like an incompetent then it serves a good purpose.

Right, when a Democrat does it, that means it is not unconstitutional.
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"[T]he Department of Justice (“DOJ”), on behalf of the United States, now asserts that “the Recess” means any “recess” in the colloquial sense – i.e., any remission or suspension of Senate business or procedure, such that the President may make a “recess” appointment whenever the Senate takes any intra-session break – e.g., each evening, or for the weekend.... [T]he Department’s novel legal interpretation break with over 200 years of Executive Branch practice under, and DOJ interpretations of, the Recess Appointments Clause.... History is not the only obstacle to DOJ’s novel interpretation. Its reading also cannot be reconciled with the constitutional language or structure, or with the manifest and acknowledged purposes of the Recess Appointments Clause. Indeed, DOJ’s position would permit the President to circumvent the Senate’s constitutionally assigned function of advice and consent, and would thereby vitiate the Framers’ determination to “divid[e] the power to appoint the principal federal officers... between the Executive and Legislative branches.”"
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- Amicus brief of Senator Ted Kennedy opposing Bush's recess appointment of William Pryor.

"Right, when a Democrat does it, that means it is not unconstitutional." When a Democrat does it, that's the time to find *him* guilty of an 'unconstitutional power grab'. Not the Republicans doing it before.

a - All the judges on this bench were Republican appointees.

b - The Economist's home page descriptor for this article is "Barack Obama is faulted for an unconstitutional power grab."

@RR: Clearly, the DC Cir. Ct. rendered this monstrosity of an opinion in order to force the issue before the US Supreme Court, as you recognize, by creating a diversity of appellate decisions. They'll get their wish.

As to the issue of party affiliation, no, but you must agree that the DC Cir is composed of right-wingers who blithely overrode more than a century of jurisprudence in this area, in order to defeat the appointments of a popular Democratic President, newly re-elected after a bitter campaign, and after receiving a very significant amicus brief signed by 41 SENATE REPUBLICANS. Clearly, the DC Cir. Ct. is acting here as the proxy of the Republican minority in the Senate and doing their bidding.

The DC Cir Ct.'s opinion is a travesty of judicial construction, completely illogical, ignores the clear intent of the Framers, exalts form over substance and repudiates the plain and simple English construction of the words "session", "recess" and "adjournment" and the clear impact on this case of the bars set upon any adjournment of Congress (including any "recess") by Art. 1.5.4. It substitutes the hysteria of the Court for reasoned jurisprudence and eviscerates a Presidential Power guaranteed to the Executive by the Constitution, in the name of saving the country from that self-same constitutional power.

The Court's decision turns reason on its head and makes a mockery of the Constitution. It is as if we were all living beyond the looking glass, rather than in America of the 21st century. It cannot stand. It shall be overturned.

"A recess as only the period in between formal sessions of Congress, which generally occurs once a year."
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Exactly how the rules were written and originally interpreted. The D.C. Circuit also stated that only vacancies which happen during the recess may be filled, and not vacancies that pre-existed the recess.
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This ruling was a long time coming. A huge victory for the rule of law.

Exactly how the rules were written
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The point of contention is that the President thinks the Senate was in a recess because they were not available to advise on his appointments and to ensure the normal functioning of government he should have been able to make a recess appointment as the Constitution allows. He contends that if all the members go home it is a recess, even if they don't call it one.
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The Supreme Court will have to give the final answer on who is right.
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Ditto about whether the vacancy has to start during a recess as opposed to extend into one.
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The language of the Constitution here is less favorable to the president:
shall have Power to fill up all Vacancies THAT MAY HAPPEN DURING the Recess of the Senate...(ALL CAPS MINE, NOT THE FOUNDERS)
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If the Supreme Court were to rule that recess appointments could happen whenever a vacancy extended into a recess, the Senate would not be losing much power as it could just ensure that it made a point to reject the appointment while in session and if the person were appointed in recess despite this, to end and start a new Session.
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Just a guess but I think that the bit about a vacancy having to happen during a recess is the part of the ruling that is upheld.

"It is staggering to consider that 200 years of recess appointments have been called into question."
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Okay, now this is where the Right makes it's usual complaint against activist judges.
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Go ahead, we're ready. Anytime now. One, two, three, go! Don't wait for us. Go right ahead.
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Hello?

Not expressing an opinion on the politics of what is not my country . . . but isn't it inherently wrong, and a violation of the principle of separation of powers, for unelected judves to interpret the law as what they would like it to be rather than what was intended by legislators? Why wouldn't people complain about this? Although I can quite see why the Left would complain in this particular instance. Nobody like a left-wing activist for complaining on a point of principle when breaching it happens to be to their disadvantage.

Interpreting the Constitution according to the intentions of the founders is their job, and they did it. They cited the text, took a position on what it means, and made a ruling. If they're right, it's the President (any many previous ones) who are interpreting the Constitution as what they want it to be. You can read their decision and decide if you agree. We'll surely see an appeal.

True libertarians view activist judges are those that reinterpret the constitution in ways that expand power of government to new levels not explicitly states. This current situation is redefining presidential power that in a manner that limits power.

The fact you don't understand the basis of the argument against activist judges is telling.

In any event:

Under Article 2 section 2: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Technically if the Senate even sends one senator to hold session they are not in recess. Further and more importantly, the wording of the Constitutions says that "all vacancies that may happen DURING recess" will be able to be filled by the President. Thus by a strict constructionist viewpoint only if the position becomes vacant during a Recess, not if the position was vacant before Recess began.

This is because the founders no doubt assumed the Senate would not be a dysfunctional branch of government and actually carry out their primary duty in governance.

"True libertarians view activist judges are those that reinterpret the constitution in ways that expand power of government to new levels not explicitly states...The fact you don't understand the basis of the argument against activist judges is telling."
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I would argue that what's telling is that you don't appear to be familiar with Sandra Day O'Connor's famous quote -
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"Activist judges are those who make decisions you don't like."

Preposterous assertion. When people refer to activist judges they are referring precisely to judicial review with which they disagree. Lawyers correctly point out that there is no such thing as judicial activism, it is just the normal functioning of appellate courts.

Well, people do complain about it. Why it is not inherently wrong is that the Congress is not the supreme law of the land, the Constitution and ratified treaties of the country are. It is certainly concievable that the Congress could pass a law and that their intention for that law is that it violate a treaty or the constitution. In that case it is fitting and proper that the law be dismissed by the "unelected" judge.
People who complain about this process are positing that the judge has substituted mere whim for proper judicial reasoning. He changes the law, they allege, because he disagrees with it for some capricious reason, like politics, rather than for sound legal reasons, like it violates constitutional precedence.
These gripes will continue on into the foreseeable future because it is there is no gold standard to allow us to tell where proper legal reasoning ends and capricious opinion begins.
This state of affairs is why smart people don't refer to judicial activism as it is a meaningless distinction from mere judicial review.

That 200 year figure is a mistake. Recess appointments have been made for 200 years but the type of recess appointment that Obama was rebuked for was a within session appointment. These were first used relatively recently.

I don't think the writer of this article understood US politics enough to see this distinction. This was a unanimous decision by 3 judges for a good reason.

Begging the question (Latin petitio principii, "assuming the initial point") is a type of informal fallacy in which an implicit premise would directly entail the conclusion. Begging the question is one of the classic informal fallacies in Aristotle's Prior Analytics.

The dispute is over the definition of when the Senate is in recess. Is it when they say it is, or is it when they are not available to do business. The president says, if it quacks like a duck (all the Senators go home to visit their families) then it is a duck (it's a recess.) This Court sided with the view that a recess is defined by the Senate procedures not the other way around.
This one will reach the Supremes I would think but the idea that it was clear cut from the get go is a little one sided I think.

"Lawyers correctly point out that there is no such thing as judicial activism, it is just the normal functioning..."
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Ask two lawyers, get three opinions, as the saying goes.
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Of course, both sides are quick to complain "judicial activism" for unwanted decisions. But to me, judicial activism is when judges wholesale make stuff up as they go along, rather than simply interpret existing rules for new circumstances. Both sides do it, but the whole "living constitution" drivel is founded on judicial activism, and the left is much more guilty than the right. I'm pro-choice, but can admit Roe v Wade was a completely bogus ruling.

Throughout history, the meaning of holy books and political documents have been debated by those "who know what was meant" and those "who know what was said". Innumerable wars and deaths have followed. Could we agree that words and language are at best an imperfect medium used to express human thought? For those who claim to have the power to know what was in the minds of people who have long since departed, I suggest they use their unique skills more profitably; by finding lost treasure, for example.

I have the greatest respect for the framers of the US Constitution. They had the wisdom to frame a document based on principals, which could govern a land racked with religious, political and cultural differences. It is a pity the same cannot be said of our present leaders. I do not believe the fathers of our country claimed to be omnipresent demigods, who could peer through the fabric of time to devise a perfect and everlasting way of governing a nation, but to hear these modern day judicial and political prophets, they must have been.

Regarding recess appointments, they were clearly meant to allow the operation of government at a time when time and distance was an issue. Today, although reality has changed, mindsets have not, what should be a simple exercise in rational thinking about the principals, becomes a debate of semantics and conjecture. Thus it has been is and will be, unfortunately.

Your observations are on the mark, eh. They limited voting to landowners, incorporated slavery into the Constitution, prohibited women from voting, did not extend limits placed on the federal government to the states. Wasn't it wonderful that progressive-minded judges were able to just ignore those limitations and incorporate their own views into law? And won't it be more wonderful when judges rather than legislatures make future laws for us to bring us into the 21st Century.

Rob S. Thank you but I am not sure putting legislation in the hands of the judiciary would solve the issue. The election and appointment of judges seems to be more about their pre judgments, rather than their ability to judge these days.

If a democracy is to prosper, it must do so within a legal framework. Our Constitution has served as a model of how majority rule can coexist with minority rights. Perhaps what we should be doing is asking ourselves and our lawmakers to actually go through the process of amending those parts of our Constitution that no longer express our times, and needs. The process is long and arduous, but that is not a bad thing, as quick changes have their dangers as well. It would not hurt if courts, at their various levels, added notes to their rulings about the history of the laws they are interpreting and the need for discussion. For example; noting that interim appointments, at this time in history, are in conflict with the separation of powers. Further they could suggest that the matter should be put on a list of subjects to be reviewed at a Constitutional Convention. This might after a period spur the public and lawmakers to review, discuss and act as needed.

Ironically, those who fear change are often the most adamant about reinterpreting the past to fit their own worldviews. The enemy is dogma; the solution is reasoned debate and hopefully appropriate legal action.

My comments were meant to be ironical, of course (a mistake in internet posts). I am made very uncomfortable with the argument that judges should interpret the laws according to the needs of the day. The function of updating our laws was assigned to the legislative branch. Indeed, despite your complaints about the Constitution and its lack of flexibility, major changes have been incorporated in the document since it was written, using the very process you find burdensome.

The requirement for approval of appointments by the President was ALWAYS a limitation of his powers. The requirement forces the President to make appointments that are acceptable to Congress. It is that limitation (and others) on presidential power that liberals find so troublesome - today, at least. Yesterday and tomorrow it may be conservatives that complain.

Obama's problems with approval of appointments would be resolved immediately - if he made appointments that would be acceptable to Congress.

It comes with the territory, BlueHue. Obama has had no more conflicts with Congress than past presidents. He needs to figure out how to adapt to those differences, and quit whining about them. For example, The House was last elected to office at the same point he was elected and the significant majority of opinion they represent are at least as representative of American priorities as his are.

He was NOT elected to be Supreme Leader. He is not Chavez of Venezuela.

I see Meme1 beat me to the answer. Let me add that when Dick Cheney was putting forth his "unitary executive" theory of Presidential power, the GOP was strangely silent about the matter, but now that there's a Democratic President trying to do his job despite the most deliberate, systematic obstructionism in American history, he's a would-be tyrant - a dictator, a Czar, a tyrant, a tyrant I tell you!

A little hint, Rob... words are useful in that they can be used to describe and understand reality; they don't create reality. IOW, calling black white and freedom slavery and Obama a Muslim socialist radical dictator doesn't make these things so. Sophistry loses it's effectiveness when it's too damned obvious.

The viewpoint on the power of the President is not determined by political persuasion - Republican or Democrat - it is determined by which party the President belongs to.

And, ascribing words to the arguer that were never used (and not "obvious" at all) by the arguer is truly sophistry, BlueHue. Which logical fallacy can your sophistry by categorized? Straw man? As hominem? A bit of both.

I admit I was using the opportunity to administer the bashing the Reptilicans so richly deserve, but I was not ascribing the words to you.
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What YOU said was: "Obama has had no more conflicts with Congress than past presidents", which is quite definitely not true (at least on average - Truman was saddled with a "do nothing" GOP congress, too, but he faced nothing approaching the abuse of process that has become the GOP's modus operandi these last four years).
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You went on to say that it was Obama's responsibility to "adapt" rather than "whine", thus refusing to acknowledge the GOP's tactics and belittling the President to boot. This is called "blaming the victim".
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But the most laughable attempt to spin reality 180 degrees was your statement that the House lizards' retention of one half of one third of the U.S. government represents a "significant majority of opinion". Who won the national popular vote, Rob?
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I do use exaggerated language to illustrate my points, and no doubt you think I'm a hypocrite to chastise your excesses, but the difference is this: I'm not trying to deny the obvious.

AS a foreigner living some way from the US, I have difficulty imagining that the majority of the House necessarily represents "the significant majority of opinion".
In many if not most States, the district boundaries are drawn in the most extraordinary ways. It seems to me that these no doubt deliberately peverse boundaries perturb the election results significantly.

Please excuse a European who thinks that he can give lessons in democracy to the USA ...

The power grab is on the part of Senate, by trying to do away with an executive power (recess appointments) explicitly spelled out in the Constitution. Shame on those judges for even considered the case!

The Senate was not a party to the case. A soda bottling company brought it. It was mentioned in the article. And when you say the power is spelled out in the Constitution, you beg the question, which is just what Recess power is authorized.

The Senate may not have been a party to the case. But it was the Senate's actions (technically avoiding going into recess explicitly to keep the President from being able to make recess appointments) that was the root cause of the case. If the Senate (or a Senator) doesn't like a Presidential nominee, the thing to do is to vote him down. Just avoiding/preventing any action at all is an abdication of their responsiblity.

They ran for, and were elected to, a job; how about they actually do it? Or is that too radical...?

I share your frustrations. Maybe we should hit them on the nose with the Sunday New York Times opinion section? ("Bad Senator! BAD!")

But that's the elector's responsibility, isn't it? If the electors don't like what their Senator does, the thing to do is to vote him - or her - down.

The President can always withdraw the nomination and nominate someone more likely to win consent quickly. If he doesn't know who that is, maybe he should ask for advice. Presidents never seem to do that.

I agree with both Concordia and Jouris.
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It is begging the question. The conflict is over when a recess exists, so when you ask the question, you can't define what a recess is.
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Jouris correctly points out that Congress is trying to stop the president using a constituionally defined power.
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Who is doing the power grabbing is determined by the proper definition, or more properly, what the Supreme Court ultimately says is the definition of when the Senate is in recess.

Speaking of power grabs, can we challenge the GOP's disgraceful use of the filibuster? The GOP has blocked so many appointments over the past four years that this seems like a joke. The focus should be on GOP douche-bags who never want to compromise with the President, nor let him do his job. GOOD Americans see this this cynical game these fuckheads continue to play. Down with the GOP - Destroy them.

There is a difference between checking the president's power, and obstructing the President's power. When YOUR party pretty much always finds a reason to stop Obama from accomplishing most anything, it's very clear that YOUR party is putting party first, country second.

You people idolize Ronald Reagan, yet don't understand one of the primary reasons for his success - he fucking compromised. You wing-nuts, sir, do not; you obstruct at every turn for, what you perceive to be, political gain. Living in the bubble that YOUR media has created has left you people partially lobotomized - unable to rationally see facts, unable to have any perspective whatsoever, other than the consistently specious talking points your whore GOP leaders love to ram through Fox and Fat limbaugh. But you know what, keep on keeping on - and enjoy the long slide down.

Can you really accuse right wingers of living in a media bubble when they (assuming francisbjohn is a right winger)are commenting in the same media as you? It would seem that the worst you could say is that except for your brief glances at the Economist, you are in a media bubble. Just sayin.

That was quite the rant... the Democrats have had control of the Senate since 2006 and thus Obama has had all or most of the 60 votes he needs to confirm his candidates since then. He really doesn't have to moderate himself too much to get passage in such circumstances.
As for the rest of your "statements", which was really just a long string of personal attacks. Well I voted for Obama in 2008 and voted against him in 2012 and am too young to really remember Reagan. I think its you who lives in a bubble and doesn't understand, and I think that because I was in the same bubble until after Obama was elected.
When was the last time you challenged any of your views? I've read NYT, Huffington Post, WSJ, The Economist and the BBC on a regular basis the last decade or so, as well as watched CNN, and FOX News. It doesn't take much to see the differences, but it does take sufficient exposure and and an open mind.
You whine like a spoiled rich kid who was told "NO" for the first time. I'll end this and sum it up: no you're not right, no I won't agree with you, no we won't give in, and no we won't give up. I'd love to talk about it quite frankly, but you can't converse if the other party's mind is closed...

Give me a break - you think viewing the major outlets is such a feat? Yea, yea - I read/watch the same publications, and then some; have been for many years. The bottom line is that I have seen for a long time, how the Republicans operate they're getting worse and worse - and I don't need newscasters telling me how to think, to see through their charade.
You don't even know Reagan history. Knowing some history can give you some perspective. That you voted against Obama the last time around, despite despicable GOP behavior, makes me believe that either you are gullible (which, since you don't even know what happened in the 80's seems quite possible) - OR, you are simply being objective for objectivity's sake - tempering your argument to come across as reasoned. All while not seeing the forest through the trees.
Even when the Dems had those 60 votes, the GOP has filibustered non-stop, so you can't lay the lack of productivity/result on the Dems. Spoiled rich kid? That's funny. I'm a professional who has worked for everything I've got. I "rant" and "whine" like a person who is completely fed up with Republican lies. You are apparently too young to be jaded and angry.
Maybe when the GOP decides to start electing good Republicans again, like Lincoln Chaffee, Chack Hagel, Nelson Rockefeller, Dick Lugar, etc. then I'll start thinking they want to put country first.
Get a clue junior.

My point is that "bubble" mentality drives GOP strategy. And anyone subscribing to that strategy has subscribed to wing nuttery - no matter how reasoned or objective they purport to come across as. I've gotten more than my fill of Republican strategy to understand what they're about. And, in my and the majority of this country's opinion, it's not good for the future of America. Bye bye now...

If the Dems have 60 votes then the GOP cannot filibuster (assuming the Dems all stick together and no Repubs cross). I think I had you pegged right the first time. You claim to know so much, but you've demonstrated nothing but your ability to attack and rant. If you can't cite some examples and explain your opinions then just give up already.

I'll repeat the most important part of my last post for your benefit: no you're not right, no I won't agree with you, no we won't give in, and no we won't give up.

Senator Bernie Sanders (Indep.-VT) spoke of a Bill that would eliminate the tax breaks that Corporations get for shipping factories and jobs overseas. (Did you know they get tax breaks for THAT?)

Sanders spoke of this on July 20, 2012, on the Thom Hartmann Show (1600 AM Radio, 3PM). He said the Republicans (who obviously never met a tax break they didn’t like!—Even when it hurts America!) actually FILIBUSTERED the Bill, if you can believe that! The vote to close the Filibuster failed. It was only 53 to 38. Republicans voted to keep the Filibuster.

Why do Dems need 60 votes for a “Filibuster Proof” Majority to get anything done? We hear the Talking Point that “Obama had a Congressional Majority for 2 years”. But without a 60 vote “Filibuster Proof” Senate Majority, Bills passed in the House would die a Senate death. Obama actually had 60 Dem Senators for 30 days in 2009: from the swearing in of Al Franken (Minn) in July (who was delayed by a long recount) and the death of Sen. Ted Kennedy in Aug. When Scott Brown won Kennedy’s seat in Jan 2010, the GOP had 41 Senators.

I can only conclude either:
(A)Bush-43 was a Master Legislative Manipulator or
(B)The Democrats, with 50 Dem. Senators, were not as aggressive in using the Filibuster as the Republicans are with 41 GOP Senators.

I vote for (B). It shows it’s not the SIZE of your opposition, but how you use it, that matters. This is especially relevant when you are in the business of screwing people.

I did read your comment but frankly you wheel all over the place, your comment is hard to follow. I think you were trying to pin blame for Obama's illegal NLRB appointments on the Republicans by claiming (incorrectly) that he only had a transitory majority, but I would appreciate you restating your question if you want a clear answer.

I will answer part directly, you said:
"tax breaks that Corporations get for shipping factories and jobs overseas. (Did you know they get tax breaks for THAT?)"

Yes, I've heard that, but nobody has ever been able to name the credit or the part of the tax code it resides in. Perhaps you can provide some clarity on this?

If the Recess Appointments Clause is going to be read so strictly, perhaps the Advice & Consent Clause should be construed so that, if Congress has not said yea or nay within a reasonable time, silence implies consent.

I don't think Miguel Estrada should've been left hanging for 2 years, and I don't think the D.C. Circuit's ruling is good law. Let's hope the Supreme Court follows generations of practice and the precedents of the 11th Circuit and other courts.